Assignment Task:

Question:
The legislation referred to in this question is invented, don’t go looking for it! Don’t refer to any actual legislation or regulations either (other than interpretation legislation).

Background:

Justin is a very keen bird watcher and collector of native birds. He is particularly interested in native parakeets. He has a large private collection. Although he does not sell them, sometimes he offers to swap them with other collectors for specimens which he does not have. He does this online on a bird fanciers Facebook page called CQ Budgies. Jerri is Yeppoon pet shop owner who is known to Justin. Sometimes Jerri buys and swaps birds on the same Facebook page. Recently the Queensland State Parliament reacted to community concerns about pressure on the numbers of endangered native birds through lucrative sales to offshore collectors. New legislation was passed tightening up the rules around their collection and sale. The Minister had this to say in his 2nd reading speech:
“The purpose of this legislation is to better protect native birdlife and promote an increase in their numbers. We will do this by prohibiting trading in those species of wild birds which are threatened with extinction and generally restricting the trade and sale of our precious native birds, particularly to overseas collectors.”

The new Native Birds Protection from Trade Act 2019 (Qld) contains the following relevant sections:

Section 14 Offences

(1) A person commits an offence against this Act if,

(a) they sell or offer to sell a prohibited bird

(b) the person captures a prohibited bird, and either or both of the following apply:
(i) the person intends to sell the prohibited bird;
(ii) the person intends to supply the prohibited bird to another person for the purpose of sale.

(c) A person who is a wildlife trader and is found in possession of a prohibited bird is deemed to be holding the prohibited bird for the purpose of sale.


“Sale” includes the following:
(a) selling or offering to sell prohibited birds by private treaty or by auction or any other means or,
(b) supplying prohibited birds to gain, directly or indirectly, an advantage for the supplier.”

In this section, a “wildlife trader” has its usual trade or ordinary meaning. The Schedule to the regulations lists the following as a prohibited bird:

Parakeets of the species Budgerigars Birds.

Justin is charged with being in breach of section 14(a) and14 (b) of the new Act when he is found with what is alleged to be a prohibited bird. Jeri was also charged with a similar offence and told inspectors that she obtained the bird from Justin. He is also charged as a wildlife trader under section14(c). Later expert evidence suggests Justin is in fact in possession of an entirely new species of the genus Budgerigarus Bird is thought to be extinct when the legislation was passed namely a Budgerigarus Birdis - Mount Archer. This is a species to the genus Budgerigarus Birds (which is, in fact, the genus and not a species at all).

Advise Justin of his prospects of defending this prosecution based solely on statutory interpretation grounds considering purpose, intention and other interpretive techniques.

 

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  • Posted on : January 16th, 2019
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